VB9-10214

RAD File / Dossier de la SAR : VB9-10214 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision December 29, 2020 Date de la décision Panel Michael J. Gardiner Tribunal Counsel for the person who is the subject of the appeal Rajveer Singh Atwal Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX (Appellant) is a citizen of India. The Appellant claims refugee protection because she fears persecution India on the basis of imputed political opinion, and because she is a woman who is "westernized."1 The Refugee Protection Division (RPD) found that the Appellant has an Internal Flight Alternative (IFA) in India in the city of Bengaluru (formerly known as Bangalore.) [2] The Appellant argues on appeal that the RPD erred in finding she has an IFA because the agents of persecution would locate her in the IFA due to her online presence and that her activism would put her at particular risk in Bengaluru. [3] The determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in finding that the Appellant has a viable IFA. [4] I find that the RPD did not err. I find that the Appellant has an IFA in Bengaluru. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention2 refugee nor a person in need of protection. BACKGROUND [6] The Appellant came to Canada from India in 2013 on a student visa. The Appellant testified at the RPD hearing that she had difficulty pursuing her studies and did not receive a diploma or certificate. The Minister provided evidence that the Appellant was arrested by the Canada Border Services Agency (CBSA) on January 30, 2019 on suspicion that she misrepresented information on a work permit application and that she was not compliant with the conditions of her study permit. The Appellant filed a claim for refugee protection while in CBSA custody. The Appellant testified at the RPD hearing that she had not filed a claim for refugee protection in Canada before she was arrested because she was unaware that she could do so. [7] In her Basis of Claim (BOC) form, the Appellant submits that she fears persecution in India based on: a. imputed political opinion given because her father is active in the political Bharatiya Janata Party, and, b. membership in a particular social group because she would be persecuted as a "westernized" woman [8] The Appellant says that she has been posting her support of women's issues in India online from Canada for approximately five years before the RPD hearing. She became more active online within the two months before the date of the RPD hearing, creating an Instagram account where has about 40 follows, and a blog that she has linked to her personal Facebook account which has about 100 followers.3 APPELLANT'S SUBMISSION [9] At the request of the RAD, the Appellant made a submission regarding item 12.8 in the National Documentation Package (NDP) for India dated July 17, 2020.4 I accept the submission into the record and I will refer to this submission in my analysis. The Appellant also seeks to introduce late new evidence to the RAD. NEW EVIDENCE The evidence presented by the Appellant is rejected [10] The Appellant seeks to introduce the following as late new evidence: 1. Online Media Article: It's a Myth, women in Bengaluru don't feel safe either (December 3, 2019); 2. CTV News Online Media Article: Indian police accused of forcing cremation of gang rape victim (September 30, 2020); 3. Online Media Article: How women in India faced brutal sexual assault over time (October 4, 2020); 4. Online Media Article: NCRB data: At 47, highest rape with murder incidents reported from Maharashtra (October 2,2020); 5. Online Media Article: New App helps keep track of those under home quarantine. (April 10, 2020); 6. Online Media Article: Police to keep track of home-quarantined. (December 10, 2020); and, 7. Online Media Article: Government publishes details of 19,240 home-quarantined people to keep a check. (May 25, 2020) [11] According to the law,5 I can only accept evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or, iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.6 [13] In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. With respect to the admissibility of new evidence, the burden lies with the Appellant. The RAD applies a narrow interpretation of section 110(4).7 This is not an opportunity to complete a deficient record submitted before the RPD.8 It is expected that full and detailed submissions on the admissibility and the relevancy of the proposed new evidence will be included.9 [14] In deciding whether to allow an application for late submissions or late evidence, I must consider any relevant factors, including: a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; and, c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the Appellant's record, respondent's record or reply record. [15] The Appellant states in her submission to the RAD that: Further, the Claimant makes an application to submit documents and written submissions that were not previously provided in accordance with Rule 37 of the RAD rules. The documentary evidence is further provided by way of affidavit. This document is highly relevant and probative to the determinative issue of IFA, and could not have been provided with the Appellant's record.10 [16] I find that the Appellant has not submitted full and detailed submissions on the admissibility and relevance of the proposed new evidence as expected. I find that the Appellant has not provided sufficient information to enable me to admit the proposed new evidence. [17] I find that the Appellant has failed to establish the admissibility of the documents she seeks to introduce as new evidence for the reasons that follow. [18] Item 1, an online media article titled It's a Myth, women in Bengaluru don't feel safe either is dated December 3, 2019 which pre-dates the perfection of the Appellant's appeal on February 18, 2020. The Appellant has not provided an explanation why the document was not submitted at perfection. The Appellant has not provided information regarding the source and credibility of this document. The article is a collection of short interviews and statements. [19] Item 2 is a CTV News Online Media Article: Indian police accused of forcing cremation of gang rape victim is dated September 30, 2020 and therefore arises after the RPD decision and after the perfection of the Appellant's appeal. CTV is a credible Canadian news organization. The article does not contain any reference to Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. [20] Item 3 is an online media article dated October 4, 2020 titled, How women in India faced brutal sexual assault over time. The article arose after the perfection of the Appellant's appeal. The Appellant has not provided any explanation as to the credibility of the online source. The article does not contain any information about Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. [21] Item 4 is an online media article October 2, 2020 and titled, NCRB data: At 47, highest rape with murder incidents reported from Maharashtra. The Appellant has not provided any explanation as to the source and credibility of this online article. The article does not contain any information about Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. [22] Item 5 is an online media article dated April 10, 2020 titled, New App helps keep track of those under home quarantine The Appellant has not provided any explanation as to the credibility of the online source. The article does not contain any information about Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. [23] Item 6 is an online media article dated December 10, 2020, titled, Police to keep track of home-quarantined. The Appellant has not provided any explanation as to the credibility of the online source. The article does not contain any information about Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. [24] Item 7 is an online media article dated May 25, 2020 titled, Government publishes details of 19,240 home-quarantined people to keep a check. The Appellant has not provided any explanation as to the credibility of the online source. The article does not contain any information about Bengaluru. The Appellant has not set out what new evidence this article provides with respect to the determinative issue and how this article is relevant to the determinative issue. No Hearing [25] Given that I have not admitted new evidence, I have no grounds to allow the Appellant's request for a hearing.11 ANALYSIS [26] My role is to look at all the evidence and decide if the RPD made the correct decision.12 As part of my analysis, I have conducted an independent assessment of the evidence and the arguments.13 [27] When a person swears to the truth of certain allegations before the Immigration and Refugee Board, there is a presumption that those allegations are true unless there is a reason to doubt their truthfulness. This presumption of truthfulness does not apply to inferences or conclusions a witness may draw from facts, or to speculation for which there is no evidentiary basis.14 [28] The presumption that a person's sworn testimony is true may be rebutted where problems are identified with the testimony. These problems can include contradictions, inconsistencies, and omissions; incoherent or vague testimony; limited knowledge of key elements of the case; or a reliance on false documents. The Appellant has an IFA in India [29] The Appellant argues on appeal that the RPD erred in finding that he has an IFA in India in Bengaluru. [30] The key concepts concerning an IFA in Canadian jurisprudence come from two cases.15 The adjudicating panel must be satisfied, on a balance of probabilities, that: (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA and; (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [31] Jurisprudence sets out that "it is up to the refugee claimant to establish the inexistence of an IFA according to the two-part test: applicants must establish that they are at risk throughout their country and that the IFA would be objectively unreasonable given the circumstances."16 The IFA meets the first prong of the test: The Appellant has not shown that she would be at risk throughout India [32] The onus is on the Appellant to adduce sufficient credible evidence that she faces a serious possibility of persecution in the proposed IFAs. The Appellant must establish that the agents of persecution have the means and motivation to harm her in the IFA. The RPD found that the Appellant has not met this burden of proof. I find that the RPD did not err for the reasons that follow. [33] The Appellant testified at the RPD hearing that her family has returned to their village and continues to live there. The Appellant testified that her family continues to be verbally harassed and threatened in the village by her father's political adversaries; however, family members have not been harmed since their return to the village in the summer of 2018 at the invitation of the local mayor. [34] The Appellant argues on appeal that the RPD erred in finding that the Appellant's belief that she will be located through her online postings is speculative. I find the RPD did not err. I have no evidence before me that her father's political adversaries are attempting to locate the Appellant in order to harm her or that they would attempt to locate the Appellant in the IFA location in order to do so. The IFA meets the second prong of the test: The Appellant has not shown that the IFA would be unreasonable [35] The Appellant argues on appeal that the RPD erred in finding that the IFA would be reasonable; "The Appellant further submits that the Member failed to correctly apply the evidence proffered with respect to the Appellant's online activism and activity, and make the correct inferences from same with respect to the reasonableness of the IFA."17 I find the RPD did not err for the reasons that follow. [36] The RPD fully canvassed the reasonableness of the IFA. The RPD noted that Bengaluru is approximately 2,500 kilometres from the state of Punjab. The RPD cited documentary evidence that the main languages in Bengaluru are Hindi and English. The Appellant testifies that she speaks both Hindi and English in addition to her native Punjabi. [37] The RPD cited objective documentary evidence in the NDP that Bengaluru is the most preferred city for single women in India who have migrated for employment and study. [38] The RPD cited objective documentary evidence that there are high levels of discrimination and violence against women in India, but that the general level of societal discrimination against women in India does not rise to the level of persecution. [39] The RPD noted that there is a small Sikh community in Bengaluru. Objective documentary evidence in the NPD establishes that there have been instances where Sikhs have been subjected to discrimination in Indian society and to harsh treatment within the Indian judicial system. Nonetheless the evidence states that: According to Australia's DFAT report, "since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence" (Australia 17 Oct. 2018, para. 3.19). In a telephone interview with the Research Directorate, an associate professor at Hiram College researching South Asian politics similarly stated that Sikhs outside Punjab are economically and socially integrated in the communities in which they live and are generally safe, although there is localized discrimination, such as the forced baptism of Sikhs, blocking of entry to public areas without removing articles of faith, such as being asked to remove turbans or kirpans for entrance tests to educational programs, but that these matters are usually dealt with by local courts or police (Associate Professor 26 Sept. 2019). According to the joint response by the WSO representative and the Associate Professor, Sikhs may encounter difficulties integrating in areas where a Sikh community does not exist and, especially for practicing Sikhs, "in other Indian states that are not as familiar with the Sikh identity" (WSO and Associate Professor 3 May 2019).18 [40] The Appellant argues on appeal that the IFA is unreasonable because the Appellant's online activism would make her a target in India. The Appellant has not adduced sufficient credible evidence to establish that she would be at risk in Bengaluru due to her online activities and that Bengaluru would therefore be unreasonable as an IFA. The Appellant has submitted evidence that she received an anonymous online threat in response to her online activity in Canada. I have no evidence before me that she has received credible threats that would put her at risk in Bengaluru. [41] In a recent decision regarding an IFA in India, Mr. Justice Roy noted that the Federal Court of Appeal has set a very high threshold with respect to the second prong: ...In Ranganathan, after citing long passages from Justice Linden's reasons in Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, and emphasizing the parts where the Court of Appeal insists that the IFA's attractiveness is irrelevant, the Court of Appeal found as follows: [15] We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized. This is in sharp contrast with undue hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations. As noted by the Court at paragraph 17, the distinction between refugee claims and humanitarian and compassionate applications should not be blurred.19 [42] I find that the Appellant has not provided evidence of conditions that would jeopardize her life and safety in the proposed IFAs. While the Appellant would undoubtedly face significant challenges in relocating to Bengaluru, I find that these challenges are not sufficient to satisfy the stringent requirements set out in the second prong of the IFA test in order for an IFA to be considered unreasonable. [43] I find that the Appellant has a viable IFA in Bengaluru. The Appellant does not have a Section 97 claim [44] The Appellant argues on appeal that the RPD erred by not conducting an analysis of the Appellant's claim under section 97 of the Immigration and Refugee Protection Act.20 I find that the RPD did not err. [45] In its decision, the RPD set out the test for a viable IFA under section 97. "I must be satisfied that one; on a balance of probabilities the claimant would not be subject personally to a danger of torture or to a risk of life or cruel and unusual punishment..."21 [46] In his submissions to the RPD, Appellant's Counsel argued that the Appellant has a section 97 claim because she is an educated, artistic woman who is active online in support of women's issues and who would therefore be at risk in India.22 In order to succeed as a section 97 claim, jurisprudence requires that the Appellant must establish that she faces a personal risk to her life or a personal risk of cruel and unusual punishment, and that this risk must not be a general risk that is shared with others in society. I find that the risk the Appellant claims she faces is a general risk that she shares with other educated, artistic women in India who support women's issues online. [47] I find that the Appellant has not established that she faces a section 97 risk in India in Bengaluru, the identified IFA. CONCLUSION [48] I dismiss the appeal and confirm the decision of the RPD that the Appellant is a neither a Convention refugee nor a person in need of protection. (signed) Michael J. Gardiner Michael J. Gardiner December 29, 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Decision, at p. 3. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 4. 4 National Documentation Package (NDP) for India (July 17, 2020), item 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019), Immigration and Refugee Board of Canada, 16 December 2019. 5 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 7 IRPA, section 110(4). 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230, at para. 54. 9 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g)(iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. 10 Exhibit P-3, Appellant's Counsel's Submission received on December 9, 2020, at p. 1. 11 IRPA, section 110(6). 12 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 13 Tekle v. Canada (Minister of Citizenship and Immigration), 2017 FC 1040. 14 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), at 305. 15 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 16 Singh v. Canada (Citizenship and Immigration), 2020 FC 277, at para. 21, quoting Singh v. Canada (Citizenship and Immigration), 2012 FC 770, at para. 23. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 2 18 NDP for India (July 17, 2020), item 12.8. 19 Singh v. Canada (Citizenship and Immigration), 2020 FC 277, at para. 20. 20 IRPA, section 97. 21 Exhibit RPD-1, RPD Record, RPD Decsion, at p. 4, lines 19-21. 22 RPD Oral Hearing at approximately 1:09:15; Appellant's Counsel's Oral Submissions to the RPD. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-10214 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français